On the menu today: Tomorrow, the eyes of the world will be on Miami as former president Donald Trump is formally indicted on 37 counts, with a potential maximum sentence that would have him spending the rest of his days in federal prison. But Trump appears to have lucked out in one way: The case has been assigned to federal judge Aileen Cannon, who ruled in favor of Trump when he requested a special master to review materials seized during the FBI search of Mar-a-Lago. Fairly or not, Cannon is perceived as a pro-Trump judge, and if she presides over the trial, she will, in the words of one former federal prosecutor, “make dozens and dozens of unappealable rulings that, cumulatively, can be outcome-determinative.” Meanwhile, while the First Amendment guarantees the right of Americans to protest outside the federal courthouse in Miami, city police worry about the potential for the protests to turn violent. The Capitol Hill riot of January 6 ruined the lives of those who showed up itching for a fight on behalf of Trump. The same story will play out if anyone gets violent tomorrow. Finally, despite the insistence that Trump would never offer or accept a plea bargain, the scenario in which that option looks appealing is not that hard to envision.
All Eyes on Florida and Trump
More than a few people told me that Friday’s Morning Jolt, and its headline, “Donald Trump’s Surprisingly Good Odds against the DOJ” looked silly in the face of the stinging indictment on 31 counts of willful retention of classified national-security information, five counts on obstruction of justice, and one count of conspiracy to obstruct justice. (Note that the Jolt is written in the morning — it’s right there in the title, fellas — and that it was written before the indictment was unsealed.)
As the editors of NR concluded:
It is impossible to read the indictment against Trump in the Mar-a-Lago documents case and not be appalled at the way he handled classified documents as an ex-president, and responded to the attempt by federal authorities to reclaim them.
Our Jeff Blehar summarized, “Trump is nailed dead to rights, and what matters most of all is that it’s not on some technical offense. What he was doing, before only a physical raid on Mar-a-Lago stopped this madness, turns out to have been less an act of mere carelessness than an active threat to United States national security, one fueled solely by Trump’s demented behavior and sense of self-entitlement.” Andy McCarthy marveled that, “the evidence comes from Trump’s lawyers. The people who were trying to minimize his criminal exposure and push back against his destructive tendencies. The people who were trying to help him.” And Charlie Cooke asked why — considering Trump’s habitual, reflexive, all-encompassing disregard for the rules and laws — Republicans aren’t tired of defending the indefensible.
But Friday’s Jolt focused on the makeup of jury pools in South Florida, not the alleged crimes or, in this case, literal giant piles of boxes of evidence. No doubt in the past, prosecutors thought they had strong or perhaps even airtight cases against other celebrities and politicians tried in south Florida — Marc Caputo’s article looked at past indictments of former Florida Democratic gubernatorial candidate Andrew Gillum, then-federal judge Alcee Hastings, former Miami-area mayors Julio Robaina and Raul Martinez, former New York Giants and Florida State University wide receiver Travis Rudolph, former Miami Dolphins wide receiver Mark Duper, and another former Dolphins receiver, Tony Martin.* The short version is that south Florida juries are particularly sympathetic to famous people and particularly suspicious of the government.
Poltico quotes Rob Mandell, a criminal-defense attorney based in Central Florida, with a warning for prosecutors:
“When you’re talking about elected officials in Florida, your jury pool is made up of the people who voted for those people,” said Mandell, whose firm recently represented one of the defendants connected to the now-closed DOJ probe of Rep. Matt Gaetz (R-Fla.). “We’re a red state and you’re getting red jurors. And they can’t see past red.”
The voting patterns of the potential jury pool don’t mean a conviction is impossible. They just mean that Trump has better-than-usual odds of finding one juror who is willing to hold out and ensure a hung jury. Juries surprise us.
And by Saturday, one more twist of fate worked in Trump’s favor with the selection of the judge for the case.
Aileen Cannon, a former prosecutor in her early 40s who has spent two and a half years on the bench, is the same Trump appointee who repeatedly ruled in his favor in a related case. She will now oversee a trial that experts believe could influence the American public’s trust in the fairness of the court system for years to come. Cannon will guide how quickly the case goes to trial, oversee the selection of jurors and determine what evidence can be presented to the jury.
The New York Times characterized the assignment of the case to Cannon as a “potential setback” for prosecutors, and former federal prosecutor Dennis Aftergut wrote at Verdict, “A pro-Trump partisan presiding over the trial could easily be death-by-a-thousand-cuts for prosecutors. Trial judges make dozens and dozens of unappealable rulings that, cumulatively, can be outcome-determinative.”
Again, this doesn’t guarantee that the jury will acquit Trump on all charges. But it does justify a little wariness of the rapidly emerging “Trump is toast” narrative.
The fact that Trump has gotten the venue he would prefer, and probably the best possible judge he could get, also complicates the narrative that this entire process is a deep-state, conspiracy-driven, rigged witch hunt with a predetermined outcome.
*This explains why, when the old Miami Dolphins offense had the ball, their catches were recorded as “possession, with intent to distribute.”
Violence Can’t Save Donald Trump
If any of this has crossed the former president’s mind, he’s hiding it well. Trump’s Truth Social feed was on fire all weekend. Trump insists that his former attorney general, William Barr, “hates TRUMP for firing him.” Barr tendered his letter of resignation on December 14, 2020.
Trump fans don’t want to hear this, but they ought to hear it anyway: If they try to turn this ongoing legal battle into a physical fight, they will lose.
There are more than a few Republican figures who are more than comfortable pouring gasoline onto smoldering embers of public anger.
Representative Andy Biggs of Arizona tweeted, “We have now reached a war phase. Eye for an eye.”
Another House Republican, Clay Higgins of Louisiana, warned of Trump’s impending indictment, “This is a perimeter probe from the oppressors. Hold. rPOTUS has this. Buckle up. 1/50K know your bridges. Rock steady calm. That is all.” (rPOTUS is a slang term for the real president of the United States; Higgins has referred to Biden as “iPOTUS,” which is a slang term for imposter or illegitimate president of the United States.)
Speaking at the Georgia GOP convention dinner, Kari Lake warned:
If you want to get to President Trump, you are going to have go through me, and you are going to have to go through 75 million Americans just like me. And I’m going to tell you, most of us are card-carrying members of the N.R.A. That’s not a threat. That’s a public service announcement. We will not let you lay a finger on President Trump. Frankly, now is the time to cling to our guns and our religion.
These figures apparently really think that if they threaten a violent reaction to the indictment loudly enough, the U.S. Department of Justice will just lose its nerve and drop the charges. That isn’t how this system works. In fact, the more Trump’s fanbase threatens violence, the more the prosecutors must go ahead with the trial. If the DOJ were to back down from angry gorilla chest-thumping like this, it would send a signal to every other future defendant that this is how you strong-arm prosecutors into backing down and withdrawing criminal charges.
January 6 was not some spectacular victory for MAGA, and it did not work out well for most of those who raided the U.S. Capitol to disrupt proceedings and prevent a joint session of Congress from counting the Electoral College votes to formalize the victory of President-elect Joe Biden. More than 1,000 people have been arrested for their roles in the January 6 riot so far, and more than 650 defendants have pled “guilty or have been convicted so far; about half face misdemeanor counts such as trespassing in the restricted Capitol, but hundreds of others face felony charges.” Earlier this year, one violent protester who prosecutors contended was “one of the most violent and aggressive participants” in the riot received a sentence of 14 years behind bars and 36 months’ probation.
Remember, Trump thought about issuing a blanket pardon for anyone involved in the riot, but decided not to pardon anyone.
People’s lives were ruined because they believed what Trump was saying and that they, somehow, by showing up and picking fights with U.S. Capitol Police, would make the rest of the country give Trump a second term. Perhaps the nuttiest thing about January 6 was the widespread belief among the MAGA crowd that if they were just violent enough — if they had, as they had chanted, hung Mike Pence, or if some angry mob had tracked down Nancy Pelosi — that somehow about 330 million other Americans would just shrug and say, “Oh, okay. I guess Trump gets another term, then. Never mind those election results that the states just certified. We now settle presidential elections by which side brings a bigger, angrier crowd to Capitol Hill.”
The Trump campaign raised $250 million in donations from supporters that it said would go to an election-defense fund to pay for legal fees to overturn the 2020 presidential-election results, and then didn’t spend a dime on legal defenses for January 6 protesters. The MAGA crowd who showed up to the U.S. Capitol on January 6 and who broke the law because they thought they were “patriots” helping the president were used and abandoned.
Just how differently do you think things will play out for anyone who violates the law or gets violent outside downtown Miami’s federal courthouse Tuesday afternoon?
The First Amendment guarantees your right to protest, so if you want to go out there and do that, go right ahead. But don’t have any illusions about your ability to influence what happens inside that courtroom.
One last thought: Yes, Donald Trump’s lawyer, Alina Habba, said on Fox News Sunday that Trump would never accept a plea bargain. With so much riding on the case for both sides, a lot will have to change before either prosecutors or Trump believe a plea bargain is a better option that continuing with the trial. But whether or not you think it’s a good thing, prosecutors and defense attorneys work out deals all the time. Yes, Trump also boasts that he never settles in lawsuits, but he settles lawsuits all the time.
Each of the 31 counts of “willful retention of national defense information” carries a maximum sentence of ten years in prison. Each count of conspiracy to obstruct justice, withholding a document or record, corruptly concealing a document or record, and concealing a document in a federal investigation carries a maximum punishment of 20 years in prison. And the count of “scheme to conceal” carries a maximum punishment of five years in prison. As the New York Post calculated, if Trump were sentenced to the maximum on each count and the judge ordered the sentences to be served consecutively, he would be looking at 400 years in prison.
Trump turns 77 on Wednesday. Trump may well live a long life; his father Fred passed away at 93.
If, at some point in the future, it looks like the jury might come back with one or more guilty verdicts, with a potential sentence of many years in prison . . . would a plea bargain really be so unthinkable?
ADDENDUM: Thanks to everyone who has written in with kind words about my essay on fatherhood in the NR Father’s Day Issue. For those who find it behind the paywall, maybe it’s a good time to remind you that a print subscription is just $30 for a year, an NR Plus Digital subscription is just $49 for a year, and getting both is just $65 for a year. That comes out to eight cents per day, 13 cents per day, and 17 cents per day, respectively. Good luck finding better value for less than a quarter!